We present a new model of negligence and causation and examine the influence of the causation test on the level of care under negligence. In this model, the injurer’s decision to take care reduces the likelihood of an accident only in the event that some nondeterministic intervention occurs. The effects of the causation test depend on the information available to the court, and the manner in which the test is implemented. The key effect of the causation test is to induce actors to take into account the distribution of the intervention probability as well as its expected value. In the most plausible scenario – where courts have limited information – the causation test generally leads to socially excessive care.

Okay, actually Harvard made all the exams available, but we care about those in Torts. Here's the link. Thanks to Kyle Graham (Santa Clara) for the tip. Kyle also notes the earlier exams focused more on intentional torts than negligence, which doesn't surprise me given the character of tort law at that time.

Oscar S. Gray is the Jacob A. France Professor Emeritus of Torts at the University of Maryland School of Law and the 2010 recipient of the William L. Prosser Award from the AALS Section on Torts and Compensation Systems. He is perhaps best known as the surviving co-author of the definitive six-volume treatise on tort law, Harper, James and Gray on Torts and as a co-editor of Cases and Materials on the Law of Torts, along with the late Harry Shulman, the late Fleming James Jr., and Donald Gifford.

Before entering the academic world, Professor Gray served as an attorney-adviser in the Legal Adviser's Office of the U.S. Department of State; special counsel to the President's Task Force on Communications Policy; and as acting director of the Office of Environmental Impact for the U.S. Department of Transportation. He also joined and became a vice president and director of a start-up company in the nuclear materials field. In addition to his decades of teaching and scholarship at the University of Maryland School of Law, Professor Gray has taught at the Georgetown University Law Center, the University of Tennessee College of Law, and the Catholic University of American School of Law. He is a member of the American Law Institute, the Selden Society, and Phi Beta Kappa.

It was a personal pleasure and privilege for me to interview Oscar--my colleague, mentor and friend--on March 10, 2011 at the University of Maryland School of Law. The interview follows.

---Don Gifford

Edward M. Robertson Research Professor of Law

University of Maryland

1. Why did you apply to law school? Where did you go to law school, and why did you select that school?

Law school was a possibility in the back of my mind for a long time. The actual decision came about as a result of a confluence of three factors as I was approaching graduation from Yale College. One was that I had to figure out what I wanted to do after graduating. And my thinking about that involved speculation about what I might like to do, and the conclusion that I would never be able to make a living with a Ph.D. in History or English. The second factor, I suppose, was that at this time I still dreamed of changing the world. The third factor was the desire to promote justice. My sense was that from the point of view of public life, law was the mechanism for bringing about social change, and looked at from the point of view of retail justice, law again was a way—perhaps the most striking way—of fighting for the righting of wrongs. All this was what was attractive about law.

What were the injustices and wrongs that you were focused on when you thought about these things?

Oh my heavens! The general oppression of people. One of the big problems of course then was racism. The taking advantage of poor people by the rich was a problem then as it is now, as it has been since biblical times. Those were the factors and then I suppose, what sealed my interest was that at that time, the Yale Law School had a local reputation among the students of being the best liberal arts graduate department in Yale University. And that’s why I chose Yale.

2. Who was your Torts professor, and what was your experience as a Torts student?

Well my experiences as a student were that I was essentially hiding under the desk not to be called upon! I had two teachers: Harry Shulman and Fleming James, Jr. Shulman was the greatest Socratic scholar that I have ever encountered anywhere. While I was terrified of him, his pressure was never gratuitous. There was always a very clear pedagogic objective to everything he said and everything he asked; it was always constructive, always tremendously challenging. It was immensely valuable. Between him and James, I think I had the best introduction to Torts I could have hoped for.

Fleming James was not as flashy a teacher as Shulman, but he was an experienced torts practitioner and had already demonstrated a great deal of thoughtfulness in a series of law review articles about torts which developed into a whole body of thinking that ultimately I had the privilege of working with for the rest of my life.

From an early time at the law school, I had contact with Fowler Harper as well. Harper probably had the greatest reputation of any of the members of our faculty for torts scholarship, as author of Harper on Torts, but at that time was not teaching Torts. He taught Constitutional Law, and I had him as a Constitutional Law teacher my first term. Later, I was a student research assistant of his on a casebook he was doing on family law, and it was one of the famous and really important casebooks of its time because I believe it was the first family law casebook that drew extensively on the results of social science research and applied them to problems in family law.

3. How did you become interested in teaching law and Torts in particular?

I first thought about law teaching while I was in law school simply because I admired the teachers so much. It just seemed as if that would be a wonderful way to live if it were ever possible to have the opportunity, so in the back of my mind I was always predisposed towards teaching.

Seventeen years or so after graduation from Law School, I had the opportunity to establish the Office of Environmental Impact in the Department of Transportation, and I had a dandy time trying to prevent roads from doing unnecessary environmental harm. After three years in that position, I left and that’s when I started to teach. I had some offers to teach something called Environmental Law which I had never heard of before then but which seemed like a natural thing. I started doing a casebook because there were no casebooks on environmental law. I taught Environmental Law courses at Georgetown and at Catholic University.

4. When did you begin teaching Torts, and how have the course and the Torts professoriate changed since then?

In 1970, Georgetown Law School significantly over-enrolled students. It needed professors to teach an additional section of Torts. The dean at Georgetown was my old senior supervisor from State, the former Legal Adviser of the Department of State, Adrian S. Fisher. Fisher asked me whether I would like to teach Torts. I was thrilled at the opportunity, and that’s how I got a chance to become a Torts teacher.

My first step was to telephone James in New Haven to try to remind him who I was, which I didn’t expect him to remember; this was, after all, over twenty years after I had taken the course from him. I told him what had happened and asked whether he could help. He asked, “Can you come up to New Haven tomorrow?” I said yes; got on the train and went up and he had the whole torts faculty of Yale lined up to talk to me and give me whatever help they could to get started. They were all very, very helpful to me. That is where I met Guido Calabresi.

When James drove me back to the train station when I was leaving, he asked me how I would like to work on revising his Shulman and James casebook. I said, “I accept”! And so I got back to Washington all set to teach a course that I hadn’t thought about much for over twenty years, and all set to do what turned out to be a very big work of scholarship for me. Later, after I had done the casebook, James asked whether I would like to help revise the treatise. Obviously I was very pleased to do that.

As to the changes, I think the central issue addressed in the Torts course as Shulman and James envisaged it and in the one that many professors teach today remains the same: the problem of dealing with accidents.

It’s hard for me to judge what teachers were like back then in comparison with my own experience with their present-day successors. I have a very high regard for the quality of applicants for teaching positions whom we see at Maryland. On the other hand, to try to generalize about trends and differences is difficult for me because when I think of the productivity of the teachers when I was a student, it just seems fabulous compared with the productivity of anybody I know today, other than Posner and Calabresi, and one or two others. The Yale Law Faculty had 35 teachers when I was a student. Harper, having previously authored Harper on Torts, which was the treatise on torts in America before Prosser, was also teaching Constitutional Law, teaching Family Law, and writing in both fields. James was doing a tremendous output of tort work and civil procedure at the same time.

5. What do you see as your major accomplishments as a scholar and teacher?

Well, I don’t know that I’ve accomplished anything major. It has been a satisfaction for me to have been able to contribute toward the keeping alive of the voices of Shulman and James, and Harper, so that they can continue to speak to new generations of students and scholars. I think that’s been a contribution to those of us who have access to this material, and in the case of Harper it is of considerable personal satisfaction as well. But I suppose that’s what makes me feel the best.

The paralyzing power of the status quo is more evident in law than anywhere else: stare decisis, the difficulty of passing or amending law, and packed legislative agendas. Of course law ought to be fair, up to date, and consistent. Sadly what law ought to be is sometimes frustrated by what law is. When that occurs law distances itself from current social reality, mores, and ultimately the people. We currently face one of those legal chasms and, to date, all we can manage to do is gawk. It was just about a year ago today (April 4 versus April 20) that the Deepwater Horizon exploded.

After a summer of spewing oil, they finally shut it off. Will the fish ever be the same? Will commercial fishers recover? What future damage might the dispersants used to break up the oil cause? How will the multi-district litigation play out? What will state courts do? How well will the Feinberg/BP ADR scheme work? All of these are interesting, indeed fascinating questions. We will argue about them. We will litigate them. We will analyze them. And then we will go on with our lives.

But eleven families will not go on with their lives the same way we went on with our lives. Why? Because eleven people died when the Deepwater Horizon exploded. And for the spouses, children, parents, siblings, and children of those eleven, the world won’t ever be even close to the same as it was on April 19. And what does the law do for them? As I explained to Congress three times last summer the answer is the law does not do enough. It does not do nearly enough.. The relevant laws are the Jones Act (because those killed were seamen) and the Death on the High Seas Act (DOHSA) (because they were killed more than three nautical miles offshore). Both of those statutes were passed in 1920, another era. As interpreted, neither of them allows recovery for loss of society damages to the survivors of those killed in high seas maritime disasters. Just what are loss of society damages? They are compensation for the loss of care, comfort, and companionship caused by the death of a loved one. They are compensation for the loss of the relationship itself. The majority of American jurisdictions today do recognize some right to recover for loss of society damages in wrongful death cases but not the Jones Act and not DOHSA. The Jones Act and DOHSA do allow the survivors of someone killed on the high seas to recover their pecuniary or economic loss but neither allows any recovery for the loss of the relationship itself. Thus, a surviving spouse may recover loss of economic support or loss of services, like cooking or cutting the lawn, but the survivor recovers nothing for the very real emotional loss of the loved one. And a parent who is not financially dependent upon a child who is killed on the high seas would recover nothing at all for their child’s death. Today under the Jones Act and DOHSA the relationship itself between the decedent and his or her spouse, child, or parent is treated as if it has no value. Friends, a spouse, child, or parent who loses a loved one, suffers a very real loss and the law, to be just, must recognize it. It is not fair not to allow that recovery. AND, the majority rule on land today IS to allow recovery of loss of society in a wrongful death case. So the law, as it applies to the eleven families of the eleven killed on the Deepwater horizon is neither fair nor up to date.

Now, there is one notable exception to the rule barring recovery of loss of society damages under DOHSA and that exception points up some current inconsistencies in the law. In 2000, after the KAL 007 and TWA 800 disasters, Congress retroactively amended DOHSA to provide recovery of loss of society to the survivors of those killed in high seas commercial aviation disasters but for anyone else killed on the high seas, including the eleven workers who died on the Deepwater Horizon, the survivors may not recover for loss of society. The law should be the same for all. The Jones Act and DOHSA should provide recovery for loss of society damages.

Of course, tort law is concerned with corrective justice—fairness, consistency, and compensation—but it is also concerned with deterring unsafe behavior posing risks to people, property and the environment. Law, including tort law, is concerned with holding people accountable. By not allowing recovery for loss of society the applicable maritime law under compensates. And, if tort law under compensates, it under deters because it does not hold those responsible accountable for all the real, direct damage they cause.

Last year the House passed legislation that would have made loss of society damages available for the survivors of those killed in maritime disasters. The Senate listened, smiled, and promised but it did nothing.

I could go on. I did when I testified in Congress three times last summer. I will again in a forthcoming article in the Louisiana Law review (LSU) and at an upcoming conference at a Roger Williams University Maritime Affairs Institute Program on April 13, 2011. But, for now, let me stop here. The law should fairly compensate the families of the eleven killed on the Deepwater Horizon. Being fair—allowing recovery of loss of society damage—would also be up to date and in line with the majority American rule. And it would be consistent with the recovery available to the survivors of those killed in a commercial aviation disaster.

Although not strictly a torts conference, Roger Williams is hosting a symposium relating to the Deepwater Horizon oil disaster. George Conk (Fordham) has the details at Torts Today. On the torts front, George will be speaking, as will tomorrow's Guest Blogger, Tom Galligan. Roger Williams's torts-scholar dean, David Logan, will also be present and moderating.